Evidence From the Mouths of Babes

ByJames H. AndrewsApril 12, 1993

TWICE in as many weeks, American courtrooms recently were the scenes of dramatic episodes related to the sexual abuse of children. On March 26, an appeals court in New Jersey overturned the 1988 conviction of Margaret Kelly Michaels on 115 counts of sexually abusing 19 three- to five-year-olds at a day-care center in Maplewood, N.J. Ms. Michaels was serving a 47-year prison sentence.

Just a week later, on April 2, a young mother walked into a courtroom in Jamestown, Calif., southeast of Sacramento, and shot dead a man accused of molesting her son in 1988. The man was present for a preliminary hearing where Ellena Nesler was scheduled to testify. While law-enforcement officials have decried Mrs. Nesler's five point-blank shots as a vigilante killing, supporters from around the country have rallied to her defense.

The incidents on opposite ends of the United States raise questions about the ability of the legal system to deal with the searing issue of child molestation. Some parents and child-rights advocates argue that Michaels's release is proof that the system inadequately protects children, and therefore that Nesler's action - though wrong - is understandable, even justifiable.

Other observers, however, contend that Nesler's vengeance - and popular reaction to it - betray the same "hysteria" about child abuse that, they say, prompted the multimillion-dollar prosecutions of Kelly Michaels and of staff members at the McMartin Preschool in Manhattan Beach, Calif., which ended in 1990 without convictions.

The US, like other countries, is grappling with the problem of child sex abuse in its legal, social, and psychological dimensions. For prosecutors, defense lawyers, judges, and legal scholars, the core question is this: Can government protect society's youngest and most vulnerable members by convicting child molesters while still safeguarding the rights of defendants - especially in cases where the strongest (and sometimes only) evidence is the testimony of young children?

In reversing Michaels's conviction, the New Jersey appeals court found in essence that the testimony of the alleged victims did not meet legal standards of reliability, and the government offered virtually no other corroborating evidence of sexual abuse. Michaels's lawyers argued that prosecutors and social workers, wittingly or not, had implanted the claims of sexual abuse in the children's minds - the "suggestibility" defense.

Mark Soler, the executive director of the Youth Law Center, a public-interest law office and youth-advocacy organization in San Francisco, anticipates that prosecutors now will proceed even more cautiously in bringing such cases.

Few people doubt that sexual abuse of children is a widespread and serious problem, however, in group settings like day-care centers, nursery schools, and camps as well as in private homes. The issue isn't the prevalence of child abuse, Mr. Soler says, "it's how to refine our techniques for determining whether kids are telling the truth."

Soler and John E. B. Myers, a professor at McGeorge Law School in Sacramento who has written widely on what he calls "forensically defensible interviewing," agree on the importance of better training for police officers and social workers who question alleged victims of sexual abuse. Both men say that trained and skillful questioners often can elicit from young abuse victims testimony that will survive the "suggestibility" defense.

Professor Myers acknowledges "a big dilemma in this area." He says that to withstand suggestibility challenges, prosecutors should avoid asking children "focused or leading questions." But, he says, "any parent who has asked their kid what they did at school that day and gotten the reply, `Oh, nothing,' knows that young children require some [pointed questioning]." Nonetheless, Myers says, the state of the art in questioning young victims of sexual abuse is progressing.

Because of the heinousness of child sexual abuse and the fear of repeat offenders, one senses from some parents and children's advocates a generally unspoken desire to lower the legal standards in sex-abuse prosecutions - to fudge on the presumption of innocence and trim on the rules of evidence. But that's not the way to go. After all: What if Kelly Michaels truly is innocent?

Our legal system is learning, albeit haltingly, how to prosecute child molesters within the law. We need to stick with the process.